Probing Recent IEE Decisions- IAASE Feb Blog

PROBING RECENT IEE DECISIONS

Courtney N. Stillman, Esq.

Himes, Petrarca & Fester, Chtd.

Given social-emotional and academic struggles during school closure and remote learning, many districts have received requests for evaluations and Independent Educational Evaluations (“IEEs”). Within the last year, there have been some interesting court decisions and administrative rulings concerning IEEs. Consider a few below: 

Guidance Issued by the Office of Special Education Programs Disregarded in Federal Court to Deny a Parent’s IEE Request.

In Thurman G. v. Sweetwater Independent School District, 79 IDELR 66 (N.D. Tx. 2021), the district evaluated a kindergarten student in all domains except motor. The student’s teachers and parents completed adaptive and developmental rating scales, the school psychologist performed cognitive and achievement testing, the speech-pathologist completed standardized testing and observed the student in class, the nurse gave vision and hearing screenings, and the IEP team reviewed various teacher observations and classroom data. The student was found eligible for special education services under the Intellectual Disability and Speech-Language Impairment categories. During the evaluation, the student’s teacher expressed an opinion that the student exhibited average gross motor skills, but below average fine motor skills. When the team developed the student’s IEP, the team noted in present levels that the student was easily distracted but could be redirected. 

Nearly two years later, unhappy with the student’s rate of progress, the parents asked to convene an IEP meeting and requested, among other things, two IEEs, including an occupational therapy evaluation and a Functional Behavior Assessment. The district denied the IEE requests on the basis that it had not completed its own OT evaluation and FBA. The district did not file due process. 

The Court held that the parents were not entitled to an IEE to assess areas not evaluated by the school district. The Court reasoned that if a parent could demand an IEE beyond the scope of the district’s evaluation, the district could never prove that its evaluation was appropriate because there would be no evaluation to defend. To support their argument that the IEE requests were appropriate, the parents cited two OSEP rulings. In Letter to Baus (2015), OSEP wrote that if a parent disagrees with an evaluation because a specific area of concern was not assessed, the parent can request an IEE in that area. Likewise, in Letter to Carroll (2016), OSEP opined that if a parent requests an IEE for an area not assessed by the district, the district must either pay for the evaluation or request a due process hearing. OSEP stated that there is no third option that allows the district to conduct the missing assessment. In Thurman, the Court ignored these letters, describing them as informal guidance and not authoritative.

A District Denied FAPE by Rejecting an IEE Conducted Virtually.

In District of Columbia Public Schools, 121 LRP 6868 (SEA D.C. 2021), the school district rejected an independent speech-language evaluation conducted via video-teleconference due to pandemic constraints. The independent evaluator administered the CELF-5 and interviewed the student’s mother and teachers. The district argued that the evaluation results were invalid because of concerns with protocols and because the test publisher had not approved all of the subtests to be conducted by video-teleconferencing. The district did not add speech services to the student’s IEP and told the parent that the district would conduct its own speech testing when in-person learning resumed. The hearing officer found that the district denied FAPE by refusing to accept the virtual speech assessment, by delaying additional testing and by failing to develop speech-language goals and provide the student speech services. The hearing officer ordered the school to provide compensatory services.

By Accepting a Transfer Student’s Evaluation Reports and IEP, the Receiving District Adopts the Sending District’s Evaluation.

In Wayne Local Schools, 121 LRP 24194 (SEA Oh. 2021), a district accepted the most recent evaluation of a student who transferred into the district and adopted and implemented the student’s IEP. Shortly thereafter, the student’s parent requested an IEE. The district denied the request, arguing that it had not yet conducted its own evaluation. The district did not request a due process hearing. The State Board of Education concluded that the district had violated IDEA by failing to either grant the IEE request or file due process. According to the State, when the receiving district accepted the sending district’s evaluation, that evaluation became the receiving district’s evaluation for IEE purposes.

To explore additional case law concerning IEEs, attend the presentation, The ABCs of IEEs: What You Need to Know about Independent Educational Evaluations at the IAASE Winter Conference. Enjoy the Conference later this month.